Rajasthan High Court - Jaipur
Meer Singh vs State on 1 September, 2009
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT MEER SINGH vs. STATE OF RAJ. SB Criminal Appeal No. 1417 of 2003 under Section 374 Cr.P.C. against the judgment dated September 20, 2003 of Special Judge Narcotic Drugs and Psychotropic Substances Act Cases, Jhunjhunu (Raj.) in Sessions Case No. 168 of 1999 convicting and sentencing the accused appellant under section 8/15 of the Narcotic Drugs and Psychltropic Substances Act, 1985 to undergo 10 years' RI and pay a fine of Rs. 1.00 lakh and in default of payment of fine to further undergo Two years' RI. REPORTABLE Date of Order : September 1, 2009 PRESENT HONBLE MR. JUSTICE MAHESH CHANDRA SHARMA Mr. Rinesh Gupta for the appellant. Mr. Peeyush Kumar, Public Prosecutor. BY THE COURT :
The appellant Meer Singh filed this appeal against the judgment dated September 20, 2003 of Special Judge, Narcotic Drugs and Psychotropic Substances Act Cases, Jhunjhunu whereby he has been convicted and sentenced under section 8/15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 to undergo 10 years' RI and pay a fine of Rs. 1.00 lakh and in default of payment of fine to further undergo Two years' RI.
2. Brief facts of the case are that on June 30, 1999 at about 8.30 p.m. Prem Prakash Chauhan, Circle Officer, Chirawa lodged a written report at Police Station Surajgarh Distt. Jhunjhunu alleging that on June 30, 1999 at about 12.30 noon Vinod Kumar Sharma, Commercial Taxes officer Jhunjhunu during cheking at Pipli Check post on Loharu Pilani Road inercepted Truck No. RJ 18 P 0656 on which he was shown Bilty of Salt and Bill which were prepared for Kuchaman City to Khairthal for Haryana. On suspicion, the driver of the Truck was asked to get the loaded goods of the truck checked. On cursory check by the staff it was suspected that there were other goods, than declared. Thereupon the loaded truck was detained for physical verification. During the intervening period a wireless information was received from Deputy Superintendent of Police Chirawa through the staff of Police Check Post Pipli that the Truck No. RJ 18 P 0656 be detained. Thereafter at about 1.30 p.m. SHO Pilani Dy. S.P. Chirawa and Tehsildar Chirawa alongwith staff arrived at the check post and disclosed definite information regarding there being goods connected with Narcotic drugs objectionable goods. A search of the said vehicle was made by Tehsildar Chirawa in the presence of witnesses. On search, besides the declared goods, 71 bags of Poppy husks were found in the truck which were seized. The truck driver Meer Singh was arrested, Site map was prepared and the case was registered at Police Station Surajgarh District Jhunjhunu under section 8/15 NDPS Act vide FIR No. 120 of 1999. After completion of investigation, the police filed challan against the appellant under section 8/ 15 NDPS Act, in the court of Sessions Judge, Jhunjhunu. The case was registered as Sessions Case No. 168 of 1999 State vs. Meer Singh in the court of Special Judge NDPS Cases Jhunjhunu. The Special Judge charged the accused under section 8/15 of the NDPS Act. The accused denied the charge and claimed to be tried. The prosecution examined 15 witnesses in support of its cas. The accused appellant was examined under section 313 Cr.P.C. The appellant in his statement stated that he did not know about the truck. He was not the driver of the said truck. He also stated that he was not with the truck, but was called lateron. He was arrested after calling him from his house. After completion of trial, the Special Judge convicted and sentenced the accused appellant vide his judgment dated September 20, 2003 as mentioned above.
4. Mr. Rinesh Gupta, learned counsel appearing for the accused appellant argued that no offence under section 8/15 of the NDPS Act is made out against the accused on the evidence produced by the prosecution. The prosecution witnesses on which the entire prosecution case hinges are highly interested witnesses and testimony of these witnesses is not corroborated from independent source. There is no cogent and reliable evidence on record to establish beyond doubt that the accused appellant was the driver of the alleged Truck No. RJ 18 P 0656 when it was intercepted by Vinod Kumar Sharma, CTO, Jhunjhunu on June 30, 1999 at about 12.30 p.m. at Pipli Check Post. The prosecution miserably failed to prove that the recovered gunny bags of Poppy husk were in the exclusive and conscious possessions of the accused appellant and he had knowledge of the same. Notice under section 133 of the Motor Vehicles Act was neither given to the owner nor to the accused to ascertain the ownership of the truck and as to who were the driver at that point of time. There are material contradictions, inconsistencies and unnaturalities in the statements of prosecution witnesses produced by the prosecution. The prosecution failed to prove link between the accused and the goods allegedly recovered from the truck. Many connecting links are missing from the chain of prosecution case. The police officials never tried to procure the presence of independent witneses at the time of search and seizure except PW.6 Man Singh but he also did not support the prosecution case and turned hostile. Investigation was kept pending under section 173(8) Cr.P.C. against Shiv Kumar and his brothers Subhash, Anil and Jai Singh residents of Derawala who were owners of the truck in question. There is non compliance of the provisions of section 42, 50 and 57 of the Narcotic Drugs and Psychotropic Substances Act, 1985. These provisions are mandatory in nature and non compliance of these provisions vitiates the whole trial. The seal used in the case was not kept in safe custody. Malkhna Incharge has not been examined with his register. The learned counsel argued that the accused appellant has been falsely implicated in the case. In support of his contentions, the learned counsel for the appellant relied upon the cases reported in Gurucharan Singh vs. Mahendra Lalwani (2006 (2) RLW (Raj.)881, Bhaiyan @ Shiv Murti (2004 WL C (Raj.) UC 416, Jitendra and another vs. State of M.P. (2004) 10 SCC 562 and Kanhai Mishra @ Kanhaiya Misar vs. State of Bihar (2001)3 SCC 451).
5. The learned Public Prosecutor on the other hand supported the judgment of conviction and argued that Narcotic Substance was recovered from the accused appellant. The trial court rightly convicted the accused appellant. The findings arrived at by the trial court are just and proper. The trial court critically examined the material available on record and judgment of conviction is based on evidence and the accused appellant has been rightly convicted and sentenced.
5. I have heard the learned counsel for the parties and gone through the entire record. Before proceeding further it is necessary to have a look at the relevant provisions of the Sections 42, 50 and 57. of the NDPS Act in particular.
Section 42 provides:-
42. Power of entry, search, seizure and arrest without warrant or authorisation. (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic substance, in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset
(a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any obstacle to such entry;
(c) such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under Chapter IV relating to such drug or substance; and
(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under Chapter IV relating to such drug or substance:
Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sun set and sun rise after recording the grounds of his belief.
(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto he shall forthwith send a copy thereof to his immediate official superior.
Section 50 of the N.D.P.S. Act reads as follows :
50. Conditions under which search of persons shall be conducted. (1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1).
(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.
(4) No female shall be searched by anyone excepting a female.
Section 52 reads thus :
Disposal of persons arrested and articles seized.
(1) Any officer arresting a person under section 41, section 42, section 43 or section 44 shall, as soon as may be, inform him of the grounds for such arrest.
(2) Every person arrested and article seized under warrant issued under sub-section (1) of section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.
(3) Every person arrested and article seized under sub- section (2) of section 41, section 42, section 43 or section 44 shall be forwarded without unnecessary delay to--
(a) the officer-in-charge of the nearest police station, or (b) the officer empowered under section 53.
(4) The authority or officer to whom any person or article is forwarded under sub-section (2) or sub-section (3) shall, with all convenient dispatch, take such measures as may be necessary for the disposal according to law of such person or article.
57. Report of arrest and seizure.- Whenever any person makes any arrest or seizure under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate superior official.
6. Sub-section (1) of Section 42 lays down that the empowered officer, if has a prior information given by any person, he should necessarily take it down in writing and where he has reason to believe from his personal knowledge that offences under Chapter IV have been committed or that materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or search, without a warrant between sunrise and sunset, and he may do so without recording his reasons of belief.
The proviso to sub-section (1) lays down that if the empowered officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place, at any time between sunset and sunrise, after recording the grounds of his belief. Vide sub-section (2) of Section 42, the empowered officer who takes down information in writing or records the grounds of his belief under the proviso to sub-section (1), shall forthwith send a copy of the same to his immediate official superior. Section 50 of the Act prescribes the conditions under which search of a person shall be conducted. Sub-section (1) provides that when the empowered officer is about to search any suspected person, he shall, if the person to be searched so requires, take him to the nearest Gazetted Officer or the Magistrate for the purpose. Under sub-section (2) it is laid down that if such request is made by the suspected person, the officer who is to take the search, may detain the suspect until he can be brought before such Gazetted Officer or the Magistrate. Sub-section (3) lays down that when the person to be searched is brought beforesuch a Gazetted Officer or the Magistrate and such Gazetted Officer or the Magistrate finds that there are no reasonable grounds for search, he shall forthwith discharge the person to be searched, otherwise he shall direct that the search be made. On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirements of Section 50 of the Act are not attracted. Section 50(4) of the NDPS Act lays down that no female shall be searched by anyone excepting a female. This provision is similar to the one contained in Section 52 of the Code of Criminal Procedure, 1898 and Section 51(2) of the Code of Criminal Procedure, 1973 relating to search of females. Section 51(2) of the Code of Criminal Procedure, 1973 lays down that whenever it is necessary to cause a female to be searched, the search shall be made by another female with strict regard to decency. The empowered officer must, therefore, act in the manner provided by Section 50(4) of the NDPS Act read with Section 51(2) of the Code of Criminal Procedure, 1973 whenever it is found necessary to cause a female to be searched. The document prepared by the Investigating Officer at the spot must invariably disclose that the search was conducted in the aforesaid manner and the name of the female official who carried out the personal search of the concerned female should also be disclosed. The personal search memo of the female concerned should indicate compliance with the aforesaid provisions. Failure to do so may not only affect thecredibility of the prosecution case but may also be found as violative of the basic right of a female to be treated with decency and proper dignity. The provisions of Sections 100 and 165 Cr.P.C. are not inconsistent with the provisions of the NDPS Act and are applicable for affecting search, seizure or arrest under the NDPS Act also. However, when an empowered officer carrying on the investigation including search, seizure or arrest under the provisions of the Code of Criminal Procedure, comes across a person being in possession of the narcotic drugs or the psychotropic substance, then he must follow from that stage onwards the provisions of the NDPS Act and continue the investigation as provided thereunder. If the investigating officer is not an empowered officer then it is expected of him that he must inform the empowered officer under the NDPS Act, who should thereafter proceed from that stage in accordance with the provisions of the NDPS Act. The Apex Court in Balbir Singhs case (1998 ) 2 SCC 724 after referring to a number of judgments, opined that failure to comply with the provisions of Cr.P.C. in respect of search and seizure and particularly those of Sections 100, 102, 103 and 165 per se does not vitiate the prosecution case. If there is such a violation, what the courts have to see is whether any prejudice was caused to the accused. While appreciating the evidence and other relevant factors, the courts should bear in mind that there was such a violation and evaluate the evidence on record keeping that in view. What is the import of the expression if such person so requires he shall be taken to the nearest Gazetted Officer or Magistrate and his search shall be made before such Officer or Magistrate as occurring in Section 50. Does the expression not visualise that to enable the concerned person to require his search to be conducted before a Gazetted Officer or a Magistrate, the empowered officer is under an obligation to inform him that he has such a right ?
7. At this stage, relevant cases of the Apex Court, are necessary to be examined.
Their Lordships of the Supreme Court in State of Punjab vs. Baldev Singh (Five Judge Bench) (1999 ) 6 SCC 172 in paras 31,32 and 33 held as under :
However, the question whether the provisions of Section 50 are mandatory or directory and if mandatory to what extent and the consequences of non-compliance with it does not strictly speaking arise in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched. Therefore, without expressing any opinion as to whether the provisions of Section 50 are mandatory or not, but bearing in mind the purpose for which the safeguard has been made, we hold that the provisions of Section 50 of the Act implicitly make it imperative and obligatory and cast a duty on the Investigating Officer (empowered officer) to ensure that search of the concerned person (suspect) is conducted in the manner prescribed by Section 50, by intimating to the concerned person about the existence of his right, that if he so requires, he shall be searched before a Gazetted Officer or a Magistrate and in case he so opts, failure to conduct his search before a Gazetted Officer or a Magistrate, would cause prejudice to an accused and render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered during a search conducted in violation of the provisions of Section 50 of the Act. The omission may not vitiate the trial as such, but because of the inherent prejudice which would be caused to an accused by the omission to be informed of the existence of his right, it would render his conviction and sentence unsustainable. The protection provided in the section to an accused to be intimated that he has the right to have his personal search conducted before a Gazetted Officer or a Magistrate, if he so requires, is sacrosanct and indefeasible it cannot be disregarded by the prosecution except at its own peril. The question whether or not the safeguards provided in Section 50 were observed would have, however, to be determined by the court on the basis of the evidence led at the trial and the finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish at the trial that the provisions of Section 50, and particularly, the safeguards provided in that section were complied with, it would not be advisable to cut short a criminal trial.
While dealing with the case of State of Punjab vs. Baldev Singh (Five Judge Bench) (1999 ) 6 SCC 172 ) their Lordships of the Supreme Court took note of the case of Pooranmal vs. Director of Inspection (1974 S SCC 345) observed as under :
The judgment in Pooran Mal case only lays down that the evidence collected as a result of illegal search or seizure, could be used as evidence in proceedings against the party under the Income Tax Act. The judgment cannot be interpreted to lay down that a contraband seized as a result of illegal search or seizure, can be used to fasten that liability of unlawful possession of the contraband on the person from whom the contraband had allegedly been seized in an illegal manner. Unlawful possession of the contraband is the sine qua non for conviction under the NDPS Act and that factor has to be established by the prosecution beyond a reasonable doubt. Indeed the seized contraband is evidence but in the absence of proof of possession of the same, an accused cannot be held guilty under the NDPS Act.
Their Lordships of the Supreme Court in State of Punjab vs. Baldev Singh (Five Judge Bench) (1999 ) 6 SCC 172 propounded following conclusions :
(1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the concerned person of his right under Sub-section (1) of Section 50 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing;
(2) That failure to inform the concerned person about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to an accused; (3) That a search made, by an empowered officer, on prior information, without informing the person of his right that, if he so requires, he shall be taken before a Gazetted Officer or a Magistrate for search and in case he so opts, failure to conduct his search before a Gazetted Officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act;
(4) That there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that the laxity on the part of the investigating authority is curbed. In every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards 50 have by Section 50 at the trial, would render the trial unfair.
(5) That whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the Court on the basis of evidence led at the trial. Finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish, at the trial, that the provisions of Section 50, and particularly the safeguards provided therein were duly complied with, it would not be permissible to cut- short a criminal trial;
(6) That in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of Section 50 are mandatory or directory, but, hold that failure to inform the concerned person of his right as emanating from Sub-section (1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law;
(7) That an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused though any other material recovered during that search may be relied upon by the prosecution, in other proceedings, against an accused, notwithstanding the recovery of that material during an illegal search;
(8) A presumption under Section 54 of the Act can only be raised after the prosecution has established that the accused was found to be in possession of the contraband in a search conducted in accordance with the mandate of Section 50. An illegal search cannot entitle the prosecution to raise a presumption under Section 54 of the Act (9) That the judgment in Pooran Mal's case cannot be understood to have laid down that an illicit article seized during a search of a person, on prior information, conducted in violation of the provisions of Section 50 of the Act, can by itself be used as evidence of unlawful possession of the illicit article on the person from whom the contraband has been seized during the illegal search;
(10) That the judgment in Ali Mustaffa's case correctly interprets and distinguishes the judgment in Pooran Mal's case and the broad observations made in Pirthi Chand's case and Jasbir Singh's case are not in tune with the correct exposition of law as laid down in Pooran Mal's case. The above conclusions are not a summary of our judgment and have to be read and considered in the light of the entire discussion contained in the earlier part.
8. On the basis of the above conclusions of their Lordships of the Supreme Court in the above case on point No.5 that whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the Court on the basis of evidence led at the trial and that finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal and that without giving an opportunity to the prosecution to establish, at the trial, that the provisions of Section 50, and particularly the safeguards provided therein were duly complied with, it would not be permissible to cut- short a criminal trial, it is necessary to have a look at the evidence adduced before the trial court by the prosecution.
PW.1 Vinod Kumar Sharma, Commercial Taxes officer on June 30, 1999, was posted at Pipli Check post on Loharu Pilani Road inercepted Truck No. RJ 18 P 0656 on which he was shown Bilty of Salt and Bill which were prepared for Kuchaman City to Khairthal for Haryana. On suspicion, the driver of the Truck was asked to get the loaded goods of the truck checked. On cursory check by the staff it was suspected that there were other goods other than declared. Thereupon the loaded truck was detained for physical verification. During the intervening period a wireless information was received from Deputy Superintendent of Police Chirawa through the staff of Police Check Post Pipli that the Truck No. RJ 18 P 0656 be detained. Thereafter at about 1.30 p.m. SHO Pilani Dy. S.P. Chirawa and Tehsildar Chirawa alongwith staff arrived at the check post and disclosed definite information regarding there being goods connected with Narcotic drugs objectionable goods. A search of the said vehicle was made by Tehsildar Chirawa in the presence of witnesses. On search, besides the declared goods, 71 bags of Poppy husks were found in the truck which were seized. The truck driver Meer Singh was arrested. He handed over all the papers relating to truck to Dy. S.P. Chirawa. Seizure memo Ex. P.1 was drawn in his presence where he has put his signatures A to B. Arrest memo of Meer Singh was also prepared in his presence and he has put his signatures A to B. PW.2 Prem Prakash Chauhan on June 30, 1999 posted as CO Chirawa. At 12.30 he received information from S.P. On this information he along with SHO Pilani Rameshshwar Lal Bagdia reached at Pipali Check Post. Prior to it truck No. RJ 18 P 656 was going towards Pilani to Loharu Salt was loaded for Kuchaman City to Khairthal for Haryana. Earlier to it wireless message was given to Commercial Taxes officer to detain the truck. The Commercial Tax Officer stopped the truck and truck driver Meer Singh. On interrogation the driver disclosed his name Meer Singh son of Malaram Jat resident of Raipur Jatan. Photographer was called and truck was unloaded by the staff. The Tehsildar also reached there and he asked the truck driver for search of the truck. On which the driver stated that search be done by themselves. Besides Gunny bags of Salt, 71 Bags of Poppy husks were also found and on weighing these 71 Gunny bags 28 Quintal and 37 Kilograms Poppy husks was found. During photography SP also came there. Driver Meer Singh was not having any licence of Poppy husks. Truck and Poppy husks were seized by Ex. P.1 on which he has put his signatures C to D. Driver of the truck Meer Singh put his signatures E to F. SHO Surajgarh was also called at the check post. Meersingh was arrested vide Ex. P.2 arrest memo wehre he has put his signatures C to D. SHO Surajgarh prepared Naksha Moka Ex. P.3 where he has put his signatures A to B. Information to SP was given vide Ex./ P.4 where he has has put his signatures A to B. Pw.3 Ashok Kumar, photographer, stated about the photographs Ex. P.5 to P. 11 taken by him at Pipli Check Post and put his signatures A to B on these photographs.
PW.4 Ransingh, who was SHO Surajgah stated that Dy.S.P. Chirawa called him over wireless to reach at Pipli Check post. He reached at Pipli Check post on 30.6.99 at 3.30 p.m. DY. S.P. Chirawa caught Truck No. RJ 18 P 656 containing 71 Gunny bags of Popy husks. The seizure memo Ex. P.1 was sent to Surajgarh Police Station for lodging FIR over which he has put his signatures G to H. Karyavahi Police was also written, where he has put his signatures I to J. K to L is signatues of Sumer Singh. During investigation Naksa Moka Ex.P.3 was also prepared where he has put his signatures C to D. During investigation he has taken the statements of the witnesses and thereafter filed challan before the court. Samples of Poppy husks were sent to FSL for examination.
PW.5 Chandgiram Jhajhdiya, Tehsildar Chirawa stated about the detention of truck at Check Post Pipli. He stated that he asked the driver of the truck for search on which he stated to him for searching of truck. The truck was unloaded by the workers called by the CTO and Police officers who were present and on checking it was found that there were 320 Gunny bags of Salt and 71 Gunny Bags of Poppy Husks. Photographer was also called. He has taken the photographs. Seizure memo of truck and Poppy husks Ex. P.1 was prepared where he has put his signatures A to B. Commercial Taxes Officer Jhunjhunu was also present. Meersingh was arrested through Ex. P.2 where also he has put his signatures A to B. PW.6 Man Singh, who was one of worker who unloaded the truck stated about the receiving of payment for unloading the truck but he was declared hostile as he has not supported the prosecution case. PW.7 Om Prakash, he was also one of the person who unloaded the truck but he was also declared hostile. PW.8 Pappu , one of the worker who unloaded the truck also declared hostile. PW.9 Banwarilal, who was associated with Bansal Salt Traders Kuchaman City, stated about loading of 320 Salt Bags through Gafoor Golden Transport Company. He was declared hostile as he has not supported the prosecution. PW.10 Gafoor, who was owner of the Gafoor Transport Company, not supported the prosecution case and he was also declared hostile. PW.11 Satyavan also not supported the prosecution case and he was also declared hostile. PW.12 Rameshwar lal, SHO Police Station Pilani stated about the detention of Truck at Check Post. He has also stated that before searching the truck, driver of the truck Meer Singh was asked that he is prepared for searching of the truck by them or to call other person, over which the driver stated that they may search the truck on their own. In his presence truck was unloaded and 71 Gunny bags of Poppy husks were recovered. Photographer was also called and he has taken the photographs. PW.13 Bheem Singh, ASI Surajgrah, PW.14 Jagdish Prasad Head Constable Surajgarh and PW.15 Sumer Singh, Constable Police Station Surajgarh, supported the prosecution case. The accused appellant in his statement under section 313 Cr.P.C. Stated that he was not the driver of the said truck. He also stated that he was not with the truck. He was called lateron. He was arrested after calling him from his house.
The accused in his statement under section 313 Cr.P.c. or by way defence has not produced any witness in order to say that the prosecution witnesses on which the entire prosecution case hinges are highly interested witnesses. Thus only by saying that the witnesses are highly interested witnesses cannot be accepted. The truck was detained at Pipali Check Post after receiving a wireless message from the SP Office Jhunjhununu. The prosecution produced the witnesses, who were hired as worker for unloading the truck. The witnesses were declared hostile as they only supported the version that they have unloaded the truck. In these circumstances the testimony of the witnesses was examined critically with reference to the documents prepared during investigation and looking to the documents and the witnesses who supported the prosecution case go to show that there is a link of chain and the same were corroborative with each other. The prosecution witnesses who have supported the prosecution case are the Police Officials and the official of the Commercial Taxes Department and their evidence is cogent and reliable and they have been able to establish beyond doubt that the accused appellant was the driver of the alleged Truck No. RJ 18 P 0656 when it was intercepted by Vinod Kumar Sharma, CTO, Jhunjhunu on June 30, 1999 at about 12.30 p.m. at Pipli Check Post. Vide Ex. P.19 bearing challan No. 1759 of Gafoor Golden Transport Company dated 20.6.99, 320 packets (Gunny bags) of salt were loaded in the Truck No. RJ 18 P 0656 over which signatures were made by Driver Meer Singh. Thus it cannot be said that driver Meer Singh was called by the police from his residence and falsely implicated in the case. The prosecution has been able to prove that the recovered gunny bags of Poppy husk were in the exclusive and conscious possession of the accused appellant and he had knowledge of the same. There is no contradiction, inconsistency and unnaturalities in the statements of prosecution witnesses produced by the prosecution. The prosecution has been able to prove link between the accused and the goods allegedly recovered from the truck. No links are missing from the chain of prosecution case. The learned counsel raised argument that compliance of provisions of section 42, 50 and 57 of the Narcotic Drugs and Psychotropic Substances Act, 1985 was not made . It is true that these provisions are mandatory in nature but how and in what manner the compliance of these sections have not been made by the police. In my opinion the truck was intercepted at Check Post by the Commercial Taxes Officer on a wireless message received by him. The truck was detained. The police officials came and Tehsildar also came. The Commercial Taxes Officer was Gazetted officer. Tehsildar was also Gazetted officer. Even the Deputy Superintendent of Police was also Gazetted officer and the prosecution given appropriate opportunity to the accused to be searched by any other person other than police officials and the Tehsildar and Dy.S.P. present at the Check Post. In their statements the prosecution witnesses stated about the compliance of section 50 of the NDPS Act. The portion of their statements read as under :
??????????? ????? (PW.2 CO Chirawa) "??? ????? ???????? ?? ???? ? ??? ??? ???? ???? ?? ????? ?? ???? ?????, ???????? ?? ???? ?? ???? ??? ?? ?? ?? ?? ???"
?????????? (PW.5 Tehsildar Chirawa) "??????? ?? ??? ?? ?? ???? ?? ????? ?? ??, ???? ?? ??? ??????? ???? ??? "
Thus it cannot be said that the mandatory compliance of provisions of NDPS Act in any manner was not complied with during investigation or at the time of arrest or at the time of search or at the time of seizure of the contraband found with the driver concealed along with the Salt Gunny Bags.
Packets marked B -1 to B-71 contained yellowish brown coloured powder of vegetable matter in polythene bags weighed 140 gms. alongwith respective bags sent to FSL and the FSL vide report dated January 11, 2001, which is admissible under section 293 Cr.P.c.as evidence, reported that on micro chemical examination the extract of the samples contained in each of the packet marked B-1 to B- 71 gave positive tests for the presence of chief constituents of opium, hence the sampels are of dried crushed capsules of opium poppy.
The accused appellant was driver of the truck from whose possession huge quantity of poppy husks was recovered and he was not having any licence for carrying the same and thus the prosecution has been able to prove the case beyond reasonable doubt against the accused appellant for contravention of the provisions of the NDPS Act. The accused appellant has been rightly convicted and sentenced by the trial court. The findings arrived at by the trial court are just and proper. I am in agreement with the findings arrived at by the trial court. On the basis of the conclusions of the Apex Court mentioned above and the findings mentioned, the arguments raised by the learned counsel accused appellant cannot be accepted. The trial court rightly convicted and sentenced the accused appellant. The judgment of conviction and sentence is confirmed.
9. For the foregoing reasons the appeal being devoid of merit stands rejected. The appellant who is in jail shall serve out the remaining sentence as ordered by the trial court.
(Mahesh Chandra Sharma) J.
OPPareek/